SZMHC and Minister for Immigration and Anor - [2008] FMCA 958

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 958

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the RRT properly exercised its discretion under s.426A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.425 and s.425A of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65(1); 425; 425A; 426A; 441A; 474; pt.8 div.2
Migration Regulations 1994, reg.4.35D

Applicant:

SZMHC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1273 of 2008

Judgment of:

Emmett FM

Hearing date:

9 July 2008

Date of Last Submission:

9 July 2008

Delivered at:

Sydney

Delivered on:

9 July 2008

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1273 of 2008

SZMHC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 April 2008 and handed down on 22 April 2008.
The applicant is a citizen of the People's Republic of China (“China”) and claims to be of Christian faith.
The applicant arrived in Australia on 28 August 2007, having legally departed from Baiyun on a passport issued in his own name and a subclass TR676 visa issued on 18 July 2007.
On 12 October 2007, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Citizenship (“the Department”) under the Act. The applicant provided a statement in support of that application in which he claimed that from December 1996 to August 1998 he joined religious gatherings in China of Bible study groups almost every weekend. He also accepted religious training and distributed religious promotional material in his area and other areas in the Fujian province.
The applicant stated that in August 1998 he was baptised to formally become a Christian and between 1999 and 2001 actively spread the gospel among friends and relatives and organised a Bible study group. The applicant stated that the Bible study group finally came to the special attention of the local government when some of its members distributed religious promotional materials to nearby residents around a construction site.
The applicant stated that on 28 October 2006 he was arrested by the PSB and detained until 30 November 2006. The applicant stated that during his detention he was subjected to interrogation and physical mistreatment. The applicant stated that the authorities were unable to find evidence to show a direct relationship with the underground church resulting in the applicant's release.
The applicant stated that the underground church arranged for him to leave China on 27 August 2007.
On 4 January 2008, a delegate of the first respondent (“the Delegate”) refused the applicant a protection visa.
On 26 November 2007, the Department wrote to the applicant inviting him to attend an interview on 6 December 2007, however, the applicant did not attend that interview. I note that the Department's letter was sent to the applicant at the only address identified by him on his application for a protection visa.
The Delegate found the applicant's claims to be “brief and vague” and “unsubstantiated” in that they were not supported by letters of support from any organisations in Australia or overseas. The Delegate found that the applicant had provided little information regarding his involvement in or practice in the underground Christian church movement in China. The Delegate also found that the applicant did not provide any great detail in relation to his arrest and detention.

The Delegate found that the applicant would not have been able to depart China legally on a passport issued in his own name on

27 August 2007
if he was of serious interest to the authorities.
The Delegate expressed that it had concerns with the applicant's credibility and ultimately was not satisfied that the applicant met the criteria required for a protection visa.
On 25 January 2008, the applicant lodged an application for review of the Delegate's decision with the Tribunal. The applicant provided no further material or documents in support of that review application.
The applicant identified an address in Auburn as his residential address in the review application. The application form did not nominate an authorised recipient and in answer to the question “Do you have an adviser you authorise to act for you in relation to this application?”, the applicant ticked the box “No”.
On 25 January 2008, the Tribunal wrote to the applicant acknowledging his application and inviting the applicant to immediately send any documents, information or other evidence he wished the Tribunal to consider. The letter also requested the applicant to notify the Tribunal immediately of any change in contact details. The letter also provided contact details of translating and interpreting services for the assistance of the applicant.
On 22 February 2008, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

The letter invited the applicant to attend a hearing on 28 March 2008 to give oral evidence and present arguments. The letter also invited the applicant to send any additional information or documents or written arguments that he wished the Tribunal to consider. That letter was sent to the applicant at the address identified by him in the review application.
Further, on 27 February 2008, the Tribunal wrote to the applicant again, rescheduling the hearing date to 3 April 2008.
On 3 April 2008, the Tribunal made a decision affirming the decision under review. The Tribunal noted that it had written to the applicant on 27 February 2008 inviting the applicant to a hearing on 3 April 2008. The Tribunal noted that no response was received to the hearing invitation and that the invitation was returned to the Tribunal unclaimed. The Tribunal noted that a check was carried out that revealed that the invitation had been sent to the correct address.

The Tribunal then decided to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Act.
The Tribunal had regard to the only information before it in support of the applicant's claims, being his statement in support of his protection visa application. However, the Tribunal was not satisfied on this information alone that the applicant met the criteria for being a refugee.
The Tribunal noted that it had advised the applicant that it was unable to make a decision in his favour on the information provided in the protection visa application and in the application for review.
The applicant was unrepresented before this Court this morning and confirmed that he had not filed an amended application, additional evidence or submissions in support of his application to this Court.

The applicant also confirmed that he had participated in the NSW Refugee Review Tribunal Legal Panel Advice Scheme and received legal advice on 18 June 2008.
The grounds of the application before this Court are:
“1. Jurisdictional error has bee (sic) made. RRT did not give me a chance for interview.
2. Procedural fairness has been denied.”
The applicant was invited to make submissions in support of his application.
At the heart of the applicant's complaint is a complaint by him that he received incorrect advice from his migration agent. The Court pointed out to the applicant that there was no migration agent identified in his application for a review to the Tribunal and that it could not be a legal mistake on the part of the Tribunal that the applicant may have received incorrect advice which resulted in his failure to attend the Tribunal hearing.
The applicant informed the Court that it was his understanding that migration agents did not wish to be identified on the review application and that certainly that was the position with his agent. The solicitor for the first respondent, Ms Rayment, offered to provide the applicant with details of the migration agents licensing body if the applicant wished to make a formal complaint.
The Court explained to the applicant that the matters to which the Court must have regard were whether or not the Tribunal complied with the statutory regime in the making of its decision.
Section 425 of the Act also provides that certain information must be given to an applicant in a letter of invitation, to come to a hearing before the Tribunal to give evidence and present arguments. An invitation sent pursuant to s.425 of the Act must be sent in accordance with s.425A of the Act. Section 425A of the Act is as follows:
“Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.”
The letter of invitation identified the day, the time and place at which the applicant is scheduled to appear and was sent to the applicant’s last address for service.
Inter alia, s.441A of the Act requires that a letter of invitation be sent by prepaid post within three days of the date of the letter of invitation. On behalf of the first respondent, Ms Rayment read the affidavit of Peter Snell sworn 19 June 2008. Mr Snell's affidavit annexed a document which I accept as being a copy of a registered post record disclosing that on 28 February 2008 a letter was sent by registered post to the applicant at the address, being the address identified by him on his review application. The letter was dated 27 February 2008. In the circumstances, I find that the overwhelming inference is that the invitation dated 27 February 2008 is the same letter sent by registered post by the Tribunal on 28 February 2008.
Accordingly, I am satisfied that the letter of invitation was sent to the applicant within three working days by prepaid post to the last address of service nominated by the applicant (s.441A of the Act).
Further, the period of notice given to the applicant in the letter of invitation was within the prescribed period as expressed in reg.4.35D of the Migration Regulations 1994. Further, the letter was sent to the applicant at the only address identified by him on the review application.
In the circumstances, I am satisfied that the Tribunal complied with its obligations under the statutory regime in inviting the applicant to appear before it pursuant to s.425 and s.425A of the Act.
Section 426A of the Act states that if an applicant is invited under s.425 to appear before the Tribunal and does not appear, then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. I accept the submission of the first respondent that, if the Tribunal has complied with ss.425 and 425A of the Act in inviting an applicant to attend a hearing, it may proceed under s.426A of the Act to consider and decide the matter without conducting any further inquiries.
A fair reading of the Tribunal's decision makes clear that the Tribunal exercised its discretion pursuant to s.426A of the Act, having first satisfied itself that the requirements of s.425 and s.425A of the Act have been met.
It is for an applicant to satisfy the decision-maker, in this case the Tribunal, that he meets the criteria required for a protection visa, that is that the applicant has a well-founded fear of persecution for a Convention-related reason. The criteria are set out in s.36 of the Act. Section 65(1) of the Act states that if the decision-maker, in this case the Tribunal, is not satisfied that the criteria for a protection visa have been met, then the decision-maker must refuse to grant the visa.
The decision of the Delegate made clear to the applicant that the information he had provided was not sufficient to satisfy the Delegate that he met the relevant criteria for a protection visa. Despite being requested on two further occasions by the Tribunal, the applicant did not provide any further information in support of his review application.
The Tribunal wrote to the applicant on 22 February 2008 informing him that it had considered the material before it but was unable to make a favourable decision on that information alone.
In the circumstances, the Tribunal’s conclusion that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, was a conclusion that was open to the Tribunal on the material before it and for the reasons it gave. In the circumstances, the decision of the Tribunal is not affected by jurisdictional error.
Accordingly, the decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

The applicant's proceeding commenced by way of application filed on 19 May 2008 is dismissed.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 10 July 2008